A section of the judges were disturbed how Justice K M Joseph appeared third as per the warrant for appointment issued by President Ram Nath Kovind on August 3 despite his name being sent as early as January.

SOME judges of the Supreme Court Monday met Chief Justice of India Dipak Misra to convey their “anguish” over the government’s decision placing Uttarakhand Chief Justice K M Joseph low in the seniority list for appointment to the apex court.

Highly placed sources said the judges took up the matter with the CJI in the morning and urged him to do the needful. CJI Misra assured them that he would discuss it with the Attorney General and take it up with the government.

Later in the afternoon, the CJI met AG K K Venugopal who apprised him of the legal procedure involved.

Justice K M Joseph, with former Madras High Court Chief Justice Indira Banerjee and former Orissa High Court Chief Justice Vineet Saran, are due to take oath as judges of the Supreme Court Tuesday.

A section of the judges were disturbed how Justice K M Joseph appeared third as per the warrant for appointment issued by President Ram Nath Kovind on August 3 despite his name being sent as early as January.

However, these objections notwithstanding, any change in the decided list seemed a near impossibility with Tuesday’s Cause List — brought out by the SC Registry listing the day’s business — indicating that they would be administered the oath of office in the order in which they appear in the warrants.

The President had issued these after the Centre cleared the names which were recommended by the Supreme Court Collegium comprising the five most senior judges CJI Misra and Justices Ranjan Gogoi, M B Lokur, Kurian Joseph and A K Sikri on July 16.

Subsequently, the Supreme Court issued a circular announcing the date and time of swearing-in.

Whether he is number one or number three on the list, Justice Joseph will not have a chance of becoming the CJI, in case the principle of seniority is followed in appointment of CJIs by the government. But he would be in a position to enter the Collegium earlier, besides getting an opportunity to head benches before others.

However, for the judges who approached the CJI, it is the principle of seniority and appointment of Supreme Court judges which is being violated in this case and needs to be defended.

These judges, who are “anguished,” “disturbed” and “shocked,” as per sources, feel that the CJI needs to stand up to safeguard the independence of the judiciary.

These judges contend, according to sources, that the collegium had first recommended the name of Justice Joseph on January 10 — along with Justice Indu Malhotra, who was sworn in April — and vowed to reiterate his name through another resolution on May 11.

The names of Justices Banerjee and Saran were recommended on July 16 by the Supreme Court Collegium.

Even while reiterating the name of Justice Joseph on July 16, sources added that his file was sent separately from the other two recommendations to make it clear to the government that it was an old case, and not linked to the other two recommendations.

The judges feel, sources said, that the government cannot treat a reiteration as a fresh recommendation and their contention is upheld by the file numbers of various government notifications issued on Friday.

The notification issued by the government on Friday also has the same file number for Justice Joseph, as it was for Justice Malhotra: K-13011/01/2018-U.S.-I, which means that the government had acted on January recommendation.

The notification for Justices Banerjee and Saran have the same file number: K-13011/03/2018-U.S.-I, which means that the government had acted on the recommendations made in July. In this case, the government should have placed Justice Joseph as the first among the three, a section of the judges feel.

The SC Collegium which then comprised of CJI Misra and Justices J Chelameswar, Ranjan Gogoi, M B Lokur and Kurian Joseph had recommended the names of Justice K M Joseph and senior advocate Indu Malhotra for elevation to the High Court on January 10. However the government approved only Malhotra’s name and she was subsequently sworn in as a judge.

There was no forward movement on Justice Joseph’s name and this invited protests from senior judges.

In April, the government returned the recommendation on Justice K M Joseph to the Collegium for reconsideration. In a letter to the CJI, Law Minister Ravi Shankar Prasad cited his standing in the seniority list, adequate representation for the Kerala High Court (Justice Joseph’s parent high court) in the apex court, and lack of representation of some other high courts in the Supreme Court to justify the government’s request for reconsideration of Justice Joseph’s name.

The government has been accused of not being keen on Justice Joseph’s name because as the Chief Justice of the Uttarakhand High Court, he had quashed President’s Rule imposed in the state. Earlier, in May 2016, the government had not acted on the Collegium’s recommendation to transfer him from the Uttarakhand High Court to the High Court of Andhra Pradesh and Telangana on medical grounds.

But the Law Minister rejected this and pointed out that the Justice J S Khehar who confirmed Justice Joseph’s order overturning the president’s rule and who also set aside the National Judicial Appointments Commission (NJAC) Act had still gone on to become the Chief Justice when the NDA government was in power.

Despite the Centre’s reservations, the Collegium (Justice Chelameswar retired on June 22 and Justice Sikri had been inducted into the Collegium by then) on May 11 decided “in principle” to reiterate its decision to recommend Joseph’s elevation. But it was only on July 16 that the Collegium finally reiterated its recommendations saying the communication from the government did not state anything adverse on the the suitability of Justice K M Joseph.